Bishop and Australian Postal Corporation (Compensation)

[2017] AATA 1807

Bishop and Australian Postal Corporation (Compensation) [2017] AATA 1807 (20 October 2017)

Division:GENERAL DIVISION

File Numbers:         2014/1930, 2015/2437, 2015/2444, 2016/5466

Re:Paul Bishop

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:20 October 2017

Place:Melbourne

The Tribunal sets aside the decision identified by application number 2014/1930 and substitutes its decision that the injury to the right shoulder is causally related to employment and liability is attracted under s 14, s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988.

The reviewable decisions of the other three applications are affirmed. 

.................[sgd]......................................................

Miss E A Shanahan, Member

COMPENSATION – bilateral shoulder injuries – cervical spine pathology – secondary psychiatric symptoms or disorder – questions of liability and compensation – left shoulder claims accepted by consent in the course of the hearing and claim for household assistance under s 29 withdrawn – claims reduced from nine to four – decision in relation to right shoulder injury set aside – decisions relating to secondary psychological disorder, cervical spine pathology and surgical treatment for the latter as denied by respondent, affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Company Pty Ltd v Semelitch (1964) 110 CLR 626
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth of Australia v Keith Colville Smith (1989) 18 ALD 224
Comcare v Canute (2005) 148 FCR 232
Comcare v Paul Mooi (1996) FCA 580
Canute v Comcare [2006] HCA 47
Comcare v Power (2015) 238 FCR 187

Secondary Materials
Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006

REASONS FOR DECISION

Miss E A Shanahan, Member

20 October 2017

1.Between 2014 and 2016 Mr Bishop lodged nine claims for compensation pursuant to s 14, s 16, s 19 and s 29 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). In summary, these allegedly arose from work caused rotator cuff type injuries, first to the left shoulder in September 2011, and then to the right shoulder in 2013. The respondent accepted liability for the left shoulder injury but disputed the claims for payment under s 19 of the SRC Act and the claim for the cost of repeat surgical intervention. 

2.Mr Bishop lodged his applications for review by the Administrative Appeals Tribunal separately, and all nine claims were listed for de novo hearing over a period of five days, from 22 to 26 May 2017. 

3.Mr Mark Carey of counsel, instructed by Maurice Blackburn Lawyers, represented Mr Bishop. Mr Michael Snell of counsel, instructed by Sparke Helmore Lawyers, represented the Australian Postal Corporation. The respondent provided the T‑documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), which was assigned the exhibit number ‘R1’. Both parties tendered further documentation and a list of these exhibits is appended to this decision. 

4.Mr Paul Bishop, Mr Russell Miller, Mr Patrick Lo, Mr Michael Khan, and Mr Ronald Haig gave evidence in person; and Dr Michael Epstein, Dr Malcolm C-Ong, and Dr James Hundertmark gave evidence by telephone.

5.During the course of the hearing the parties reached an agreement with respect to several claims and on 24 May 2017 the Tribunal, in accordance with s 42C(1) of the AAT Act, set aside the reviewable decisions in application numbers 2015/2436, 2016/3918, and 2016/4066. These related to the left shoulder injury and disputed compensation for time off work. On 23 May 2017 Mr Bishop withdrew application number 2016/0448 lodged under s 29 of the SRC Act for household services. 

6.As a result of these Consent Orders and the withdrawal, the Tribunal was only required to address four reviewable decisions:

·     application number 2014/1930; claim for what was identified as a right shoulder injury, lodged on 23 September 2013;

·     application number 2015/2437; a claim for what was identified as a secondary psychological injury, liability having been denied on 4 May 2015;

·     application number 2015/2444; a claim for what was described as numbness and weakness in left index and middle finger, cervical spine/neck pain, lesion axillary nerve left shoulder, lodged on 11 December 2014; and

·     application number 2016/5466; a claim under s 16 of the SRC Act regarding surgical treatment of the cervical spine pathology, liability having been denied on 15 September 2016.

BACKGROUND TO THE APPLICATION

1. Mr Bishop has worked for the Australian Postal Corporation (Australia Post) for 24 years. Having left school after year 10, Mr Bishop commenced an apprenticeship as a motor mechanic under Frank Lowndes for four years between 1981 and 1985, and was involved in the Peter Brock car racing stable. Between 1985 and 1993 he worked at Toyota as a leading hand mechanic predominantly doing road testing, which did not involve heavy work. 

2. Following a misunderstanding or dispute regarding pay conditions, he left his job as a motor mechanic and commenced work with Australia Post, as he believed it offered a far greater level of job security and gave him the opportunity to obtain and maintain a superior level of fitness. Initially he was employed delivering mail riding a pushbike. He worked normal hours of 7 hours and 12 minutes but in the busy season, particularly during Christmas time, he worked up to 12 hours per day; first of all sorting the mail, throwing off, and then delivering mail. Six months after he commenced work they changed to motorbikes. After five years with Australia Post he became a team leader, spending half his time in the office and the other half as a postal delivery officer. 

3. On 13 February 1998 he was hit by a reversing car while delivering mail. While he was relatively asymptomatic, his helmet was cracked. He was off work for two days and was compensated for this particular event. On 28 December 1999 he suffered a bout of acute lower back pain after lifting a tub of mail. Again, he lodged a worker’s compensation claim which was accepted. He was placed on light duties for a period of three months. In 2000 he was involved in assisting the investigation of a fraud perpetrated at the Australia Post facility where he then worked and as a result developed anxiety and depression. He was treated by his general practitioner and subsequently by Dr Khana, a psychiatrist, who he saw regularly for six months. Zoloft, an antidepressant, was prescribed which he took for a period of two years. His claim for a psychological injury was accepted and his medical expenses were paid. In 2004 he suffered a fall from his motorbike, landing on his right shoulder, and once more a claim was lodged, accepted, and paid. 

4. In 2007, Mr Bishop began working in what is known as line-haul duties. Line-haul duties involved working up to 60 hours per week over five days, with four weeks devoted to delivery of mail products, initially from the Dandenong Centre to Melbourne Airport, but later interstate, driving a B-Double truck. 

5. As a transport driver, every fifth week in the line-haul duties was termed service week, during which he was required to clean the trucks, unload and reload their contents using a forklift. He was also required to unbuckle the truck curtain, there being some 70 to 80 buckles per truck at a height of 18 inches (45.72cm) from the ground. The curtains protecting the content of the truck were operated by poles, which required physical effort to pull backwards and forwards. He was required to service up to eight trucks per day. This work also required the changing of tyres in the transport facility and on the road. From 2007 until about 2012, Australia Post was using re-treads, which had a higher puncture rate than new tyres. 

6. When operating on interstate runs between Melbourne and Sydney he would drive for five hours to Tarcutta, rest for 30 minutes, and then drive another truck back to Melbourne for a further five hours. 

7. Mr Bishop gave evidence that tyre punctures were more common in hot weather than the winter. Before leaving the transport facility Mr Bishop was required to check the truck including the tyres, fuelling, etc. Once per trip he was required to pull out the trailer pin.  This has since been replaced by a mechanical tugger, making the process easier.

8. Up until 2011 Mr Bishop said he had never had a day off work, other than what has been previously mentioned in relation to his time as a postal delivery officer. In 2011 or late 2010 he developed symptoms in his left shoulder but had not noticed any neck problems other than feeling stiff after sitting for a long time. An x-ray of his left shoulder followed by an ultrasound in March 2010 was performed at the request of his general practitioner. Mr Bishop’s claim for a left shoulder injury was accepted on 8 November 2011 and on 4 April 2012 he underwent surgical correction in the form of an arthroscopic sub-acromial decompression, arthroplasty of the acromioclavicular joint and tenodesis of his left biceps tendon. This surgery was performed by Mr Russell Miller. 

9. Mr Bishop returned to work some three to four months later and performed his normal duties. He claims that as he was still suffering from some minor pain and tenderness in the operated shoulder, he used his right arm to a greater extent than he had previously. As he reduced his post-surgical analgesia medications he noted pain in his right shoulder joint and difficulty sleeping if he lay on his right shoulder. 

10. Mr Miller diagnosed a work-related right shoulder injury on 14 May 2013. An MRI of the right shoulder revealed supraspinatus tendinosis with a small tear, degenerative changes in the acromioclavicular joint with impingement and biceps tendinosis. Mr Miller recommended surgery to the right shoulder joint. Mr Miller recorded that Mr Bishop had developed further problems with his left shoulder and repeat MRI investigation was to occur. Restricted work duties were advised as of 14 May 2014. 

11. Mr Bishop was seen by Mr Ronald Haig on 30 July 2014, within two months of seeing Mr Miller. Mr Haig’s report dated 6 August 2014 does not make any reference whatsoever to any right shoulder symptoms or any examination findings other than those in the left shoulder. Despite this injury having already been accepted as work-related by Australia Post, Mr Haig opined that it was totally unrelated to any work. 

12. Mr Bishop filled out claim forms in relation to his right shoulder in late 2013. However, as there were no incident reports filed at any time, Australia Post appears not to have processed these claims until an incident report was completed on 11 November 2013, followed by a new claim for compensation on 29 November 2013. Australia Post denied liability for any right shoulder injury on 20 January 2014. 

13. Mr Bishop stopped driving trucks on 23 April 2014, prior to his appointment with Mr Miller. Between his return to work in August 2012 and that date in 2014, apart from a period up to October 2012, he had worked normal hours driving duties, including the one week service week. He was off work from 23 April 2014 until he had exhausted all sick leave. He had further left shoulder surgery which was accepted by Australia Post as work related. Mr Bishop returned to work on 29 July 2015, working 7.21 hours per day as a yard marshal. After his surgery he was unable to work until 16 February 2016 when he resumed work as a yard marshal three hours per day, two days per week. While off work for his second shoulder operation he had been paid at 75 per cent of his normal weekly earnings.

14. In retrospect, Mr Bishop believes he first developed neck pain radiating to his left shoulder in late 2011. He had also noted numbness of his second and third fingers of his left hand and subsequently his left thumb, and in March 2014 reported to Dr C-Ong that he had lost sensation in the thumb, second and third fingers of his right hand. 

15. On 30 October 2014 Mr Bishop underwent CT scanning of his cervical spine at the request of his general practitioner Dr Yoosuflebbe. This reportedly revealed a mild broad based disc bulge at C4/5 and osteophytes at C5/6 and C6/7 uncovertebral joints which could be impinging on the corresponding C6 and C7 nerve roots. An MRI of the cervical spine was recommended but does not appear to have taken place until 27 April 2015.

16. Mr Lo described the MRI as showing C5/6 right sided and C6/7 left sided foraminal narrowing, which he believed explained the symptomatology of numbness in the fingers of both hands. He advised multilevel anterior cervical discectomy and fusion of the cervical spine in June 2016. Mr Lo subsequently sought permission from Australia Post to proceed with this surgery. 

17. Both liability and acceptance of the request for payment of surgical fees were denied in a determination dated 19 February 2015. This was confirmed by the reconsideration delegate on 19 March 2015.

18. Mr Bishop has a history of anxiety and depression, manifesting initially in 2000. Between 2002 and 2014 he stated his psychological status had been normal. Mr Bishop has stated that he experienced increased stress and anger, followed by depression from 2013 onwards. In 2013 he hit his wife for the first time. He had consulted his general practitioner Dr Alexander and requested that he be prescribed Zoloft. Dr Alexander commenced him on Zoloft on 7 February 2013.

19. Mr Bishop was subsequently assessed by Dr Michael Epstein who provided a report dated 5 November 2015 (Exhibit A6) and made a diagnosis of a chronic adjustment disorder with mixed anxiety and depressed mood secondary to ongoing pain and discomfort from his physical injuries. 

20. Mr Bishop was assessed by Dr James Hundertmark, psychiatrist, on 16 March 2015. Dr Hundertmark, while noting the past and present history, did not find any evidence of a psychiatric disorder as delineated by the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). A primary determination of 13 April 2015 denied liability and this was confirmed on review by the Australia Post reconsideration delegate on 4 May 2015. 

    EVIDENCE BEFORE THE TRIBUNAL

    Mr Paul Bishop

21. Mr Bishop’s evidence has been summarised under BACKGROUND TO THE APPLICATION. In his oral evidence he enlarged on his duties, particularly those relating to his interstate B-Double truck driving and the frequency of having to change tyres. He described the method taught by Australia Post to perform this task. Drivers were either to lever the large tyres into position or lift them manually from behind their back, grasping the tyre with both hands, presumably with their knees bent, and then raising it to the height of the axle. While no supporting evidence was given, the Tribunal assumes this was to minimise back injuries given the size and weight of these tyres. This process was referred to as back lifting. 

22. Mr Bishop said the maximum number of tyre changes he had to do was three in two hours, but this depended on which tyre blew as to how many you might have to take off. For example, if it was an inside tyre that punctured, you had to take off two tyres to access the puncture and replace the punctured one. He said he did not do back lifting between 2013 and 24 April 2014. At the time of the hearing he was working three hours per day, three days per week as a yard marshal directing vehicles. While he did not think he would have had any difficulty in working longer than three hours, he was following a return to work program devised by Australia Post’s Leanne Davis. On further questioning Mr Bishop thought that on average he would have had to change a tyre once a fortnight in the summer and once a month in the winter.

    Mr Russell Miller – orthopaedic surgeon

23. Mr Miller first saw Mr Bishop on 7 March 2011 in relation to his left shoulder symptoms. He provided a report on 23 November 2015 (Exhibit A4). On 4 April 2012 Mr Miller operated on Mr Bishop’s left shoulder, performing an arthroscopy and multiple procedures, including acromioclavicular joint resection by acromioplasty, repair of the biceps tendon and sub-acromial decompression by excision of the sub-acromial bursa. In his initial report Mr Miller referred to the pathology as being in the right shoulder, describing it as chronic right shoulder problems. However, all his detailing of examination findings and symptoms refer to the left shoulder. The Tribunal accepts that this was an incorrect initial siting of the lesion. 

24. In his evidence before the Tribunal Mr Miller identified the work-related contribution to the development of shoulder pathology as performing work at an above shoulder level. The Tribunal asked whether the lifting of tyres from the back lifting position would place greater stress on the shoulders. Mr Miller agreed that this would be a significant contribution. In further examination by Mr Carey, Mr Miller confirmed that it was above shoulder and excessive strain bio-mechanical factors that contributed to the development of shoulder pathology.

25. Mr Miller had provided several reports over the years but had not been involved in the re‑do surgical procedures on Mr Bishop’s left shoulder in late 2015, which were performed by Professor Ek. 

    Mr Patrick Lo – neurosurgeon

26. Mr Lo had provided a report dated 18 March 2017 (Exhibit A5), referred to under BACKGROUND TO THE APPLICATION. In summary, Mr Lo had found that Mr Bishop’s right C5/6 and left C6/7 foraminal narrowing shown on MRI was work related in an aetiological sense and not the natural progression of the disease. The work identified as being contributory was the lifting of packages and the operation of curtains on the trucks. Mr Lo did not consider the progress of vertebral disease between the plain x-ray performed in 2008 and the MRI in 2015 to be overly rapid. 

27. When questioned by Mr Snell on the diagnosis of canal stenosis and surgery proposed for this condition, Mr Lo advised that this treatment was not required currently based on Mr Bishop’s symptomatology and that any relief of canal stenosis would be purely a preventative measure in case it became significant in the future.

28. The Tribunal asked Mr Lo why Mr Bishop had not been submitted to nerve conduction studies, given that Dr C-Ong, Mr Haig and Mr Khan had advised that these be undertaken to exclude the presence of carpal tunnel syndrome. Dr C-Ong had in fact made a diagnosis of bilateral carpal tunnel syndrome. In reply, Mr Lo said he had not found any indication to perform such investigations.

    Dr Michael Epstein – psychiatrist

29. Dr Epstein provided a detailed report dated 5 November 2015 (Exhibit A6). While noting the past history of depression, Dr Epstein determined that Mr Bishop suffered from an adjustment disorder with anxious and depressed mood as a result of his work injuries; in particular, his left shoulder and subsequently the development of right shoulder symptoms. This had been accentuated by what was said to be an overall poor attitude or response by Australia Post. 

30. In his evidence before the Tribunal, Dr Epstein affirmed his diagnosis and expanded on the symptomatology which he agreed showed irritability, anger, as well as frustration in his worker’s compensation application dealings. Dr Epstein had read Dr Hundertmark’s report which said there was no diagnosable psychiatric disorder present in Mr Bishop. Dr Epstein disagreed with this conclusion. Dr Epstein indicated that Mr Bishop’s behavioural patterns were in his opinion outside the so-called normal range of mood. He considered Mr Bishop having stormed out of his consultations with both Mr Haig and Dr Ben Cheesman, consultant occupational physician, as examples of behaviour outside the mental mood norm. 

31. In cross-examination by Mr Snell, Dr Epstein qualified his diagnoses to the extent that all symptoms were significant and abnormal and met the requirements of DSM-V. When asked if these symptoms could have arisen from family difficulties, Dr Epstein refuted such a suggestion as Mr Bishop’s relationship with his partner was long standing, having commenced in 1994, and he had never before responded with physical violence to his partner until that occasion in April 2013. Dr Epstein agreed that the psychiatric disorder from which Mr Bishop suffered had not been incapacitating until 2014 when it had deteriorated. 

    Dr Malcolm C-Ong

1. Dr C-Ong was previously a facility nominated doctor who has now progressed to providing occupational health opinions. He provided two reports; the first dated 24 August 2015 (Exhibit A7), and the second 22 March 2017 (Exhibit A8). Dr C-Ong was of the opinion that Australia Post should have accepted Mr Bishop’s right shoulder pathology claim which he considered to be accumulative trauma. He did not believe that the fracture of his right clavicle sustained by Mr Bishop as a teenager made any contribution to the much later development of his right shoulder pathology. 

2. Dr C-Ong was also of the opinion that the resultant psychiatric symptoms and disorder were secondary to the physical disorder and contributed to Mr Bishop’s overall incapacity. 

   Mr Michael Khan – orthopaedic surgeon

3. Mr Khan saw Mr Bishop on 12 February 2015 for the purposes of providing an independent expert opinion. Having taken a detailed history and performed a thorough physical examination, Mr Khan concluded that Mr Bishop was disabled by the effects of injuries to both shoulders, which he attributed to his employment. Of particular causal relevance was Mr Bishop’s initial use of his left arm to move curtains on B-Double trucks, pull, unbuckle and buckle these curtains, lift poles, strap down pallets; as well as refuelling and cleaning the truck, climbing in and out trucks and changing wheels. While recovering from surgery to his left shoulder, Mr Bishop predominantly used his right shoulder in the performance of these duties and did so for several months between November 2012 and at least January 2013 when an MRI scan of the right shoulder was performed. 

4. While noting the presence of cervical spondylosis which had been symptomatic in terms of neck pain and the development of numbness in the fingers and thumb of his left hand, these symptoms had nearly abated when seen by Mr Khan. He concluded there were no signs of C7 radiculopathy in the left upper limb. 

5. In his evidence before the Tribunal Mr Khan reiterated his written opinion. The Tribunal asked him if the back lifting method of changing tyres would have any further effect on shoulder pathology. As explained above, this method was for the driver to lift the tyre with his hands behind his back and the tyre positioned against his back. In order to do this, it was clear he had to have both shoulders in an internally rotated position. Mr Khan was of the opinion that should there be any pre-existing pathological changes in the shoulder joint, such movement and lifting would aggravate and accelerate further degeneration. 

   Mr Ronald Haig – orthopaedic surgeon

6. Mr Haig saw Mr Bishop on several occasions, the first of which related to the left shoulder symptoms, signs, and pathology, liability for which has been accepted. Mr Haig saw Mr Bishop again in April 2016 but this consultation was aborted when Mr Bishop walked out shortly after the interview began. Mr Haig saw Mr Bishop on 27 May 2016 and provided a report dated 7 June 2016 (Exhibit R4). The purpose of this visit was to reassess the current condition of both the shoulders and Mr Bishop’s cervical spine. 

7. While there was some conflicting history provided by Mr Bishop, Mr Haig concluded that having undergone two operations on his left shoulder, Mr Bishop was improved with respect to his symptoms, although he had continuing pain on adduction. 

8. In relation to the right shoulder, Mr Haig obtained the original history he had received in January 2014 that following surgery to the left shoulder and return to work in November 2012, Mr Bishop had developed pain in his right shoulder. However, on this occasion Mr Bishop informed Mr Haig that in 2004 while riding a postal delivery motorbike he had been hit by a car and fell to the ground landing on his right shoulder. When seen in May 2016 Mr Bishop stated that his right shoulder symptoms were worse. He noticed more pain, grating and clicks. 

9. On physical examination of the right shoulder, local tenderness was absent and flexion and abduction were near normal. Extension was limited to 15 degrees, external rotation 15 degrees, and internal rotation was markedly reduced. 

10. In relation to his cervical spine, Mr Bishop gave a history of having had neck pain on and off for many years with the development of numbness and tingling in his left thumb and medial two fingers in March 2014. He was seeing Dr Lo, neurosurgeon, for these complaints. When reviewed by Mr Haig he again complained of constant numbness and tingling in the left thumb, index and what was described by Mr Haig as the long fingers. Mr Bishop reported tingling in the thumb and all fingers in the right hand. 

11. Mr Haig concluded that as there was no history or evidence of an injury to any of these sites, it was unlikely that Mr Bishop’s work had been responsible for the development of the symptoms in the neck and both shoulders and that all pathology was age related degenerative change. 

12. Mr Haig believed Mr Bishop’s symptomatology would continue to deteriorate with time and again stressed the need to exclude the presence of carpal tunnel syndrome before it could be assumed that the hand symptoms were due to a cervical radiculopathy. Mr Bishop could not perform his pre-injury duties even on a part time basis in Mr Haig’s opinion. 

13. In his oral evidence Mr Haig confirmed his written opinion but agreed that repetitive overhead activity had been incriminated causally in the development of shoulder rotator cuff symptomatology. However, he did not believe that Mr Bishop, on the history given to him, had performed enough of this overhead type work for it to have been contributory. 

14. Mr Haig confirmed that on physical examination on 27 May 2016 he had on testing found that Mr Bishop had reduced sensation in his left thumb, index and middle finger but reiterated his strongly held advice to have nerve conduction studies performed as this numbness could be explained by median nerve entrapment in the carpal tunnel or a C6, C7 radiculopathy. 

15. In cross-examination Mr Haig agreed that the description obtained by Dr Cheesman of Mr Bishop’s work lifting mail bags, bending, lifting, and twisting, constituted significant upper body movement. Mr Haig disagreed that such activity over a period of time would lead to progressive cervical spinal canal stenosis, given that this was more common in females who did not indulge in such activity. 

16. When acquainted with the description of these activities as obtained by Dr Cheesman and the return to work rehabilitation officer, Mr Haig said that these activities would certainly increase the pain experienced, but in his opinion would not alter the underlying pathology. Mr Haig disagreed with Mr Miller’s opinion regarding shoulder joint movement and also Mr Lo’s conclusions regarding the cervical spine. 

    Dr James Hundertmark – psychiatrist

17. Dr Hundertmark saw Mr Bishop on 16 March 2015 and provided a report dated 23 March 2015 (T18, 2015/2444, 2015/2436, 2015/2437) in which he concluded that Mr Bishop did not suffer from any diagnosable psychiatric disorder, as classified by DSM-V. He considered Mr Bishop’s emotional state to be what one would expect given his circumstances in relation to his worker’s compensation claims, these having led to significant anger toward his employer. 

18. In his evidence Dr Hundertmark confirmed the content of his written report, acknowledged that Mr Bishop has continuing pain, but considered this to be commensurate with his physical joint pathology, i.e. it was not indicative of a chronic pain syndrome. Mr Carey acquainted Dr Hundertmark with Dr Epstein’s opinion with which Dr Hundertmark disagreed. While Dr Epstein had identified anger as being part of a mood disorder, Dr Hundertmark disagreed strongly and read to the Tribunal the criteria for the diagnosis of an adjustment disorder with depressed and anxious mood. Anger was not included amongst the diagnostic criteria.

    DOCUMENTARY EVIDENCE

19. Dr Muirden saw Mr Bishop in October 2011 and provided a report to Australia Post on 31 October 2011. This report is relevant to the current matter in that Dr Muirden had examined both shoulders and reported abnormalities, including muscle wasting, in the left shoulder with impingement but a reasonable range of movement limited only by local tenderness. The right shoulder joint was considered to be normal. As the MRI of Mr Bishop’s left shoulder revealed evidence of a labral tear, Dr Muirden was of the opinion that the shoulder symptoms were a result of workplace injury, in particular, overhead reaching. Dr Muirden concluded that workplace factors were the major contributor to the development of Mr Bishop’s left shoulder pathology.

    Dr Ben Cheesman – consultant occupational physician

20. Dr Cheesman saw Mr Bishop at the request of Australia Post, assessed him on 9 December 2014, and provided a report dated 16 December 2014 (T11, page 26, 2015/1095 - T11). 

21. As part of the assessment, Dr Cheesman attended the work place and reviewed the work tasks of an interstate driver. His report is detailed with respect to the actual duties undertaken by Mr Bishop. Dr Cheesman obtained the already documented history relating to the left and right shoulders and the cervical spine. On examination he found that both shoulders exhibited a limitation of range of movement with very similar restrictions on measurement. 

22. Dr Cheesman reported altered sensation in Mr Bishop’s left index and middle fingers, the thumb having fully recovered. He noted that the ring finger was spared and that the altered sensation affected not only the palmer aspect of the fingers but also the dorsal aspect. Grip strength was said to be reduced in the left hand.

23. Dr Cheesman had been provided with the imaging relating to the left shoulder and a CT scan of Mr Bishop’s cervical spine. 

24. Dr Cheesman confirmed that rotator cuff disease in the left shoulder persisted despite previous surgical treatment and considered there was probable right rotator cuff disease. However, as there was no imaging provided he was not certain of this diagnosis. In relation to the cervical symptoms, he recommended further investigation to confirm a diagnosis of radiculopathy. Dr Cheesman said this further investigation should include nerve conduction studies given the condition might be carpal tunnel syndrome. The possibility of a psychiatric disorder was also considered but despite suggesting this might be anxiety, an adjustment reaction, or embitterment syndrome, Dr Cheesman recommended that Mr Bishop be assessed by a psychiatrist. 

25. In terms of prognosis and Mr Bishop’s capacity to or likelihood of returning to full pre-injury duties, Dr Cheesman advised that it was not possible to make a definitive assessment, given the need for further investigation of the right shoulder pathology and Mr Bishop’s psychiatric status. Dr Cheesman specifically commented on what he termed Mr Bishop’s strong sense of embitterment and anger toward the workplace. At the time of the consultation Dr Cheesman considered that it was unlikely that Mr Bishop could cope with office duties, parcel or mail sorting tasks, and his ability to drive or travel was likely to be compromised. 

26. In conclusion, Dr Cheesman recommended nerve conduction studies and an MRI scan of Mr Bishop’s cervical spine. 

    MRI scan of Mr Bishop’s cervical spine

27. An MRI was requested by a general practitioner, Dr Wijekulasooriya and the request slip for this study stated that Mr Bishop had experienced neck pain for two years with symptoms of radiculopathy and sudden severe back pain after trying to lift a weight. It would appear from the report that the back pain was in the lumbar spine. It is noted that neither the MRI of the cervical spine nor the lumbar spine was rebateable under the Medical Benefits Schedule (MBS). This is because in early 2015 general practitioners were not permitted to order rebateable MRI’s and if they did order such tests the patient had to bear the entire cost. 

28. While Mr Bishop had undergone a CT scan of his cervical spine six months earlier, it would appear that this was not available to the radiologist performing the MRI scan as no comparison was made. The Tribunal is aware that a CT scan provides greater detail of bone structure whereas an MRI provides detail of soft tissue structures such as vertebral discs, nerve roots and ligaments.

29. The MRI reportedly showed no canal stenosis at any level in the cervical spine but did show narrowing of the neural exit foramina on the right and left at C5 level, both right and left at the C6 nerve root level with some narrowing of the left C7 neural foramen causing compression of this nerve root. The MRI report stated the neural exit stenosis was due to uncovertebral hypertrophy.

30. The CT scan identified the cause of the narrowing to be the presence of osteophytes (small buttresses of bone arising from the vertebral body) protruding into the foraminal tract through which the nerve root exited.

    RELEVANT LEGISLATION

31. Section 4 of the SRC Act provides basic general definitions of an injury, an ailment and aggravation.  These concepts are addressed in a more detailed fashion in s 5A and s 5B of the SRC Act which state:

    5A  Definition of injury

    (1)In this Act:

    injury means:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

    (2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a)a reasonable appraisal of the employee’s performance;

    (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

    (c)a reasonable suspension action in respect of the employee’s employment;

    (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

    (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

    5BDefinition of disease

    (1)In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    (3)In this Act:

    significant degree means a degree that is substantially more than material.

32. The SRC Act further provides for compensation to be attracted where an injury results in death, incapacity for work or impairment.  Section 14 states:

    14  Compensation for injuries

    (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    (2)Compensation is not payable in respect of an injury that is intentionally self inflicted.

    (3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self inflicted, unless the injury results in death, or serious and permanent impairment.

33. Compensation for medical expenses is dealt with in s 16 and s 16(1) states:

    16  Compensation in respect of medical expenses etc.

    (1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

    SUBMISSIONS

    The Applicant

34. Mr Carey in his written submissions summarised the evidence before the Tribunal and identified the area of dispute between the parties as being whether the right shoulder and neck complaints are an injury other than a disease, the aggravation of such an injury, or a disease which includes the aggravation of an ailment. In respect of the claimed secondary psychiatric disorder, the existence of which the respondent had rejected, Mr Carey contended that employment had made a significant contribution to all three conditions, whether by causation or aggravation, leading to incapacitation for work and impairment of function. He drew attention to s 4(9) of the SRC Act and the definition of incapacity to engage in work and submitted that s 4(9)(b) was particularly relevant, in that Mr Bishop was incapacitated to engage in work of the same type and at the same level as that he undertook immediately before the injury. It was contended that the incapacity did not have to be permanent nor contemporaneous with the onset of the injury. 

35. Mr Carey addressed in detail the physical injuries to the neck and right shoulder and the secondary psychiatric disorder, which he was agreed was an ailment. 

36. Dealing first with physical injuries, Mr Carey cited the decision of the Full Court of the Federal Court of Australia in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176:

    No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. ...

    The Full Court went on to say:

    ... It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.  

    In Percival, the respondent argued that the determination in Commonwealth v Beattie (1981) 35 ALR 369, that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place, was wrongly decided. The court rejected this argument.

37. Reference was also made to the Federal Broom Company Pty Ltd v Semelitch (1964) 110 CLR 626 wherein the Judges adopted the words of Moffatt J at first instance, stating:

    There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. ...

38. Mr Carey submitted that all the medical witnesses called by Mr Bishop had stressed the repetitive nature of the work performed in his various areas of employment with Australia Post. It was contended that the right shoulder was properly described as being symptomatic arthritis in the acromioclavicular joint with impingement and rotator cuff tendinopathy. This was the diagnosis made by Mr Miller and agreed with by Mr Khan, Mr Khan considering it to be an aggravation of a pre-existing advanced degenerative change in acromioclavicular joint resulting in post-traumatic supraspinatus tendinopathy and impingement.

1. Similar contentions were advanced in relation to Mr Bishop’s postulated radiculopathy and so called multi-level degenerative disease with disc bulges and foraminal narrowing. The report of Mr Lo (Exhibit A5) was cited as the basis of this contention. Although the Tribunal notes that the MRI shows no evidence of disc bulging or canal stenosis, it does show foraminal narrowing at C5/6 and C6/7 levels, the latter being predominantly on the left side. 

2. With respect to the psychiatric disorder, reliance was placed by Mr Carey on the report of Dr Epstein who made a diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood. This, it was contended, was precipitated by the pain and disability originally related to the left shoulder injury but continuing with the right shoulder injury. 

3. Mr Carey cited the decision in Commonwealth of Australia v Keith Colville Smith (1989) 18 ALD 224 wherein Von Doussa J identified Mr Smith’s mental disorder as being a secondary psychogenic pain disorder arising from wrist pain. Reference was also made to the decision of Comcare and Canute (2005) 148 FCR 232 where Gyles J said:

   There is little doubt that the definitions of ‘injury’ and ‘disease’ are wide enough to permit of the conclusion that the psychological condition in question here might be regarded either as a mental injury or as an ailment and so an ‘injury’ as defined, which resulted in a permanent impairment quite separate from that resulting from the condition of the back. As the injury to the back was sustained in the course of the employment of the employee, it would be open to conclude that the psychological condition caused by it arose out of the employee’s employment or was contributed to in a material degree by the employee’s employment.

   The Tribunal notes that the Full Court majority (French and Stone JJ) adopted this approach.

4. As the respondent had suggested that Mr Bishop’s psychiatric injury was of a nature not outside the boundaries of normal mental functioning, Mr Carey referenced the dicta of Drummond J in Comcare v Mooi [1996] FCA 1587. In this decision a label of a recognised medical condition was not considered to be essential as recognition that the condition (i.e. the mental ailment disorder, defect, or morbid condition) was outside the boundaries of normal mental functioning and behaviour was sufficient. The respondent’s arguments had arisen from the somewhat irrational responses to situations where Mr Bishop’s mood was one of anger.

5. Mr Carey submitted that the irrationality of responses when mood was heightened was to be expected. In support of this contention, Mr Carey referred to Dr Cheesman’s opinion of December 2014. Dr Cheeseman had suggested that the psychiatric diagnoses may include adjustment disorder, anxiety or chronic embitterment syndrome. This contention was also said to be supported by the fact that Mr Bishop himself recognised his reactions were beyond the bounds of normal mental functioning, he having sought help and medication from Dr Alexander in 2013.

6. Mr Carey rejected the countering evidence of Dr Hundertmark that Mr Bishop’s responses and mental status were within the boundaries of normal mental function.

7. Mr Carey requested that the Tribunal set aside all of the four remaining reviewable decisions and find that all conditions, namely the right shoulder lesion, the secondary psychological injury and the cervical spine/neck pain, auxiliary (sic) nerve left shoulder and left index and middle finger numbness and weakness were injuries arising from employment or had been contributed to, to a significant degree, resulting in incapacity as required by s 14 of the SRC Act. As a result, the request of Mr Lo for acceptance of payment of his fee for the planned anterior cervical discectomy and fusion flowed from acceptance of liability. The Tribunal notes there is no such thing as an auxillary nerve, or even what might have been described as an axillary nerve in Anglo-Australian anatomy textbooks.

   The Respondent

8. Mr Snell, having addressed the interpretation of s 5A and s 5B of the SRC Act, accepted that Mr Bishop’s right shoulder; neck; and secondary psychological disorder, whatever the diagnosis, were ailments as defined by s 5B of the SRC Act. However, he argued that the contribution of his employment to these ailments did not satisfy the requirement that the contribution be of a significant degree, as per s 5B(3). Therefore none of the physical or the mental conditions satisfied the definition of an injury. 

9. Mr Snell contended that the two physical conditions were endogenous degenerative disorders constituting an ailment, but were not caused by employment nor were they aggravated by it. The psychiatric disorder, it was contended, did not meet the threshold for a disease as it did not meet the requirements of Comcare v Paul Mooi in terms of being outside the boundaries of normal mental function. Additionally, should there be such a disorder, it was in response to administrative decisions and directions of Australia Post regarding Mr Bishop’s entitlements and rehabilitation. 

10. Mr Snell summarised the evidence regarding the nature of Mr Bishop’s work and accepted the opinion of Mr Miller that Mr Bishop’s work was moderately physical. Mr Snell contended that the truck driving and tyre changing Mr Bishop performed, whilst being activities that were equated to lifting above shoulder height, were so infrequent as not to make a significant contribution to any aggravation of any pre-existing bilateral shoulder pathology. There were no specific incidents reported by Mr Bishop or any doctor resulting from these activities.

11. In relation to Mr Bishop’s psychiatric status, Mr Snell referred to the applicant’s several outbursts of anger during the course of the hearing, including his statement that Australia Post had been responsible for the death of a colleague driver. Based on the report of Dr Hundertmark, Mr Snell contended that Mr Bishop had long standing anger and bitterness toward Australia Post which was insufficient to support a diagnosis of depression and relevantly, if such a condition existed it had not resulted in incapacity for work. It was submitted that Mr Bishop’s anger was evidenced by his complaints regarding his rehabilitation and Australia Post’s decision making process and Mr Bishop had never been referred for treatment by a psychiatrist or psychologist in relation to his claim.

12. Mr Snell provided an apposite summary of the legislation and in conclusion submitted that as of February 2013 Mr Bishop’s mental attitude was one of anger. He did not suffer any effects of injuries in terms of impairment or incapacity and continued with normal duties for a period of 14 months thereafter and the so called psychiatric disorder developing after that period was related, if it existed, to his disaffection with the conduct of his claim. 

13. In relation to the claim for a neck injury, Mr Snell contended there was no relationship of this condition to Mr Bishop’s employment, as the condition was of a degenerative nature commensurate with his age. Therefore liability did not exist and as a corollary no liability was attracted under s 16 of the SRC Act for the recommended surgical procedure.

    TRIBUNAL’S DECISION

14. The Tribunal decides that Mr Bishop’s right shoulder pathology is an injury in accordance with the s 5A definition arising from his preferred use of his right upper limb in his duties as a B-Double driver for Australia Post in the period during which he suffered from symptoms relating to his left shoulder. The latter left shoulder injury has been accepted by Australia Post as being an aggravation of an underlying or pre-existing ailment contributed to by a significant degree the duties of his employment. 

15. The Tribunal’s decision is based primarily on the report of Dr Muirden to Australia Post in October 2011 recording that the history obtained and the physical examination revealed that the right shoulder was normal. It was clearly not normal in August 2013 as reported by Mr Russell Miller. Investigations in the form of ultra-sounds and subsequently MRI revealed rotator cuff type injuries, sub-acromial bursitis and impingement. Mr Miller had recommended surgical intervention in the form of arthroscopy and depending on the findings appropriate surgical intervention. 

16. The Tribunal finds that the later medical evidence was conflicting or alternatively non‑decisive. However, based on the opinion of Dr Muirden that there was no abnormality in the right shoulder joint in 2011, the onset of symptoms in 2013 following left shoulder surgery and Mr Bishop’s evidence that he used his right shoulder thereafter to lift, the Tribunal finds a s 5A injury arising out of or in the course of employment to be the correct conclusion. 

17. Mr Bishop’s claim relating to his neck pain/cervical spine pathology is fraught with conflict in both the objective evidence and opinions. Once more, based on his age, some underlying degenerative changes in the cervical spine would be expected and with the passage of time would become symptomatic. Such a conclusion is consistent with both the CT and the MRI findings. However, the Tribunal notes and gives weight to the opinions of Dr C-Ong, Mr Khan, Dr Cheeseman, Mr Miller, and Mr Haig who all recommended the performance of nerve conduction studies before a diagnosis of cervical nerve root radiculopathy could be accepted. Thus, the Tribunal rejects the claim for liability given the incompleteness of the investigation. 

18. Similarly, the claim for a psychiatric disorder is subject to conflicting medical evidence and opinion, and could only be considered at the most as an aggravation of an underlying or previous ailment in accordance with s 5B of the SRC Act. On the evidence before the Tribunal, particularly regarding Mr Bishop’s evidence and behaviour, it seems more likely that he suffers from an anger problem rather than a psychiatric disorder. Additionally, the evidence before the Tribunal is that between the time of diagnosis and 2014 when Mr Bishop ceased work and thereafter reduced his hours of work because of his shoulder problems, there was no incapacity for work attributed to the psychiatric disorder. 

19. In summary, the Tribunal sets aside the decision in relation to the right shoulder (application number 2014/1930) and substitutes its decision that the right shoulder condition is an injury arising out of employment (s 5A) or in the alternative, an aggravation of a pre-existing ailment significantly contributed to by Mr Bishop’s employment (s 5B).

20. The claims in relation to the cervical/neck pain (application numbers 2015/2444 and 2016/5466) and the psychiatric injury (application no 2015/2437) are affirmed on the basis of inconsistent or incomplete medical evidence in support of these conditions. 

I certify that the preceding 95 (ninety‑five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

..............[sgd]..........................................................

Associate

Dated: 20 October 2017

Dates of hearing:	22 - 26 May 2017
Date final submissions received:	5 July 2017
Counsel for the Applicant:	Mr Mark Carey
Solicitor for the Applicant:	Mr Tim Dionyssopoulos, Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr Michael Snell
Solicitor for the Respondent:	Ms Kellie Latta, Sparke Helmore

APPENDIX

Applicant

A1Paul Bishop Statement dated 27 January 2015

A2Paul Bishop Statement dated 16 July 2015

A3Paul Bishop Statement dated 14 December 2016

A4Dr Miller Medical Report dated 23 November 2015

A5Dr Patrick Lo Medical Report dated 18 March 2017

A6Dr Michael Epstein Medical Report dated 5 November 2015

A7Dr Malcolm C-Ong Medical Report dated 24 August 2015

A8Dr Malcolm C-Ong Medical Report 23 March 2017

A9Dr Khan Medical Report dated 23 March 2017

Respondent

R1T-Documents

R2Incident report dated 13 February 1998

R3Dr Atheel Alexander, general practitioner, Medical Records

R4Dr Ronald Haig Medical Report dated 7 June 2016